90 Pa. Commw. 213 | Pa. Commw. Ct. | 1985
Opinion by
Keystone Chemical Company (Keystone) has appealed from an order of the Court of Common Pleas of Schuylkill County affirming the denial by the Butler Township Zoning Hearing Board (board) of a special exception to operate an industrial waste materials treatment plant.
In 1977, Keystone applied for, and received from the board, a variance permitting it to conduct an oil recycling operation on land located in the zoning district of Butler Township designated Mining. In 1978, the Pennsylvania Department of Environmental Resources (DER) issued a permit authorizing Keystone to operate a “solid waste disposal and/or processing facility”; additionally, the United States Environmental Protection Agency issued a permit allowing Keystone to operate a hazardous waste treatment plant. In 1979, Keystone leased the land from the City of Philadelphia for a term of thirty years.
Also in 1979, the board issued a second variance and a building permit authorizing Keystone to erect and operate an oil processing plant on the leased site. Keystone constructed this facility, including a single, asphalt-lined earthen cell, which it filled with chem
On May 10,1982, DEE personnel inspected the site and discovered forty-four violations of DEE regulations. Keystone later filed an application with DEE to amend its permit so that it might replace the asphalt liners, which had become cracked and eroded due to weather exposure, with plastic liners. DEE then issued an order on September 1, 1983, ordering Keystone to cease its commercial waste processing operation until Keystone had replaced the liners to DEE’s satisfaction. Keystone suspended operations and has not resumed them.
In 1983, Keystone, under new ownership, filed an application with the township’s zoning hearing board for a special exception to store, process and dispose of industrial waste materials, including hazardous and toxic wastes. Keystone would construct two buildings for processing industrial waste and additional impoundment cells and leachate collection basins to treat and contain the runoff from the neutralized waste. The ¡board denied Keystone’s application, and the trial court, which did not receive additional evidence, affirmed on the record made at the board hearing;
The parties agreed that Keystone’s proposal for a special exception was a light industrial use permitted as a special exception in the Mining zoning district.
The applicant for a special exception has both the duty of initially presenting evidence and the burden of persuading the fact finder that the use proposed satisfies the specific or objective requirements of the ordinance for the grant of a 'special exception. Lower Merion Township v. Enokay, Inc., 427 Pa. 128, 233 A. 2d 883 (1967); Bray v. Zoning Board of Adjustment, 48 Pa. Commonwealth Ct. 523, 410 A.2d 909 (1980).
Keystone therefore had the duty of presenting evidence and the burden of persuading the board that the use it proposed satisfies the specific requirements of the ordinance for the grant of a special exception. The township, which opposed the application, had the duty of presenting evidence and the burden of persuading the board that the proposal would be detrimental to the public interest.
The board found that Keystone had not established the specific or objective requirement for a special exception that its proposed facility would not be located in a flood plain area of the township. Section 508 of the Butler Township zoning ordinance provides regulations respecting activities in flood plain areas. Section 508.6 forbids the placement of any obstruction in a flood plain area.
Flood Plains are based on those areas that have ■been delineated by the TJ.S. Department of Housing and Urban Development as part of the National Flood Insurance Program or those areas which the U.S. Soil Conservation Service has classified as alluvial soils or local alluvium in the “Soil Survey, Schuylkill County, Pennsylvania.”
The actual determination of the limits of such alluvial soils and the elevation of land subject to inundation by flooding due to a one hundred (100) year storm frequency shall be the responsibility of the applicant, and calculations shall be approved by the Soil Conservation Service, Corps of Engineers, and/or the Municipal Engineer.
Should the area designated as a flood plain on the Zoning Map be found to be inapplicable or*218 inaccurate, based upon calculations, then the zoning requirements for -such property shall be deemed to be the regulations of the District in which the property is located.
Keystone’s evidence pertinent to the question of whether its facility is located in a flood plain area as described by the ordinance consisted of the testimony of a professional engineer to the effect that the area had not been mapped by the Department of Housing and Urban Development and that calculations made by his office show, if we understand the record, that the height of the sides of the cells created to contain waste runoff and leachate would be twelve feet above the elevation of the 100 year flood. There is no evidence that the soils at the location, which as we have noted borders a stream, are not alluvial or local alluvium or that the elevation of the land was not subject to inundation by a 100 year storm. Keystone’s engineer seems to- have made some calculations concerning the elevation of the land on which the additional impoundment cells or leachate basins were to be located, suggesting as noted that the dike breasts would be above the 100 year flood elevation but, if we understand the testimony, that the bottoms would be below that elevation. None of the engineer’s calculations were approved by the Soil Conservation Service, the Corps of Engineers or the township engineer, as the ordinance -also required. We agree with the board and the court of common pleas that Keystone failed to carry its burden of persuasion that its land was not located in a flood plain area, an important specific or objective requirement for a special exception. .
Keystone contends that the board committed an error by imposing upon it the burden of persuasion that the proposed use would not be detrimental to
Order affirmed.
Order
And Now, this 19th day of June, 1985, the order of the Court of 'Common Pleas of SchuylMll County in the above-captioned matter is affirmed,
No question seems to have been raised as to Keystone’s standing to request a use variance on land which it neither owned nor leased.
Section 508.5(b) of the ordinance provides that upon special exception buildings may be erected in the “floodway fringe areas,”